[Adopted 6-5-1991]
When used in this article, the following terms
shall mean:
An individual, partnership, society, association, joint-stock
company, corporation, estate, receiver, trustee, assignee, referee
and any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, and any combination of
the foregoing.
A person who purchases food and/or drink, the receipts from
which are taxable under this enactment.
The amount of the sale price of any food and/or drink taxable
under this enactment valued in money, whether received in money or
otherwise, including any amount for which credit is allowed by the
vendor to the purchaser, without any deduction for expenses or early
payment discounts.
Any transfer of title or possession or both, exchange or
barter, rental, lease or license to use or consume, conditional or
otherwise, in any manner or by any means whatsoever for a consideration,
or any agreement therefor, including the rendering of any service,
taxable under this enactment for a consideration or any agreement
therefor.
Includes:
A person making sales of food and/or drink,
the receipts from which are taxed by this enactment.
The State of New York or any of its agencies,
instrumentalities, public corporations, including a public corporation
created pursuant to agreement or compact with another state or Canada,
or political subdivisions when such entity sells services or property
of a kind ordinarily sold by private persons.
Any salesman, representative, peddler or canvasser
who is treated by the State Tax Commission as a vendor, pursuant to
the provisions of § 1101(b)(8)(ii) of the Tax Law.
A.
On and after the first day of March 1992, there is
hereby imposed and there shall be paid a tax of 3% upon the following:
(1)
The receipts from every sale of beer, wine or other
alcoholic beverages or any other drink of any nature or from every
sale of food and drink of any nature or of food alone, when sold in
or by restaurants, taverns or other establishments in this taxing
jurisdiction or by caterers, including in the amount of such receipts
any cover, minimum, entertainment or other charge made to patrons
or customers, except those receipts taxed pursuant to § 1105(f)
of the Tax Law:
(a)
In all instances where the sale is for consumption
on the premises where sold.
(b)
In those instances where the vendor or any person
whose services are arranged for by the vendor, after the delivery
of the food or drink by or on behalf of the vendor for consumption
off the premises of the vendor, serves or assists in serving, cooks,
heats or provides other services with respect to the food or drink.
(c)
In those instances where the sale is for consumption
off the premises of the vendor, except where food, other than sandwiches,
or drink or both are sold in an unheated state and are of a type commonly
sold for consumption off the premises and in the same form and condition,
quantities and packaging, in establishments which are food stores
other than those principally engaged in selling foods prepared and
ready to be eaten.
B.
The tax imposed by this article shall not apply to:
(1)
Food or drink which is sold to an airline for consumption
while in flight.
(2)
Food or drink sold to a student of a nursery school, kindergarten, elementary or secondary school at a restaurant or cafeteria located on the premises of such a school, or food or drink, other than beer, wine, or other alcoholic beverages, sold at a restaurant, tavern or other establishment located on the premises of a college, university or a school, other than a nursery school, kindergarten, elementary or secondary school, to a student enrolled therein who purchases such food or drink under a contractual arrangement whereby the student does not pay cash at the time he is served, provided that the school, college or university described in this subsection is operated by an exempt organization described in § 166-43A of this article or is created, incorporated, registered or licensed by the state legislature or pursuant to the Education Law or the regulations of the Commissioner of Education, or is incorporated by the regents of the university of the State of New York or with their consent or the consent of the Commissioner of Education as provided in § 216 of the Education Law.
(3)
Food or drink sold through coin-operated vending machines
at $0.10 or less, provided that the vendor is primarily engaged in
making such sales and maintains records satisfactory to the State
Tax Commission.
The tax imposed under § 166-41 shall be paid upon all sales made and services rendered on or after the effective date of this enactment although made on or rendered under a prior contract, except that a delivery or transfer of possession of tangible personal property made after said date pursuant to an agreement for the sale of said property made before the date four months earlier than the effective date of this enactment shall not be subject to tax if:
A.
Such agreement for the sale of said property was made
in writing;
B.
The particular item or items of property so sold or
agreed to be sold were segregated, before November 1, 1991, from any
other similar property in the possession of the vendor and identified
as having been appropriated to such sale or agreement of sale; and
C.
The purchaser, before March 1, 1992, shall have paid
to the vendor not less than 10% of the sale price of said property.
A.
Except as otherwise provided in this section, any
sale by or to any of the following shall not be subject to the tax
imposed by this enactment:
(1)
The State of New York or any of its agencies, instrumentalities,
public corporations, including a public corporation created pursuant
to agreement or compact with another state or Canada, or political
subdivisions where it is the purchaser, user or consumer or where
it is a vendor of services of a kind not ordinarily sold by private
persons.
(2)
The United States of America and any of its agencies
and instrumentalities, insofar as it is immune from taxation, where
it is the purchaser, user or consumer or where it is a vendor of services
of a kind not ordinarily sold by private persons.
(3)
The United Nations or any international organization
of which the United States of America is a member where it is the
purchaser, user or consumer or where it is a vendor of services of
a kind not ordinarily sold by private persons.
(4)
Any corporation, association, trust or community chest,
fund or foundation organized and operated exclusively for religious,
charitable, scientific, testing for public safety, literary or educational
purposes or to foster national or international amateur sports competition,
but only if no part of its activities involve the provision of athletic
facilities or equipment, or for the prevention of cruelty to children
or animals, no part of the net earnings of which inures to the benefit
of any private shareholder or individual, no substantial part of the
activities of which is carrying on propaganda or otherwise attempting
to influence legislation, except as otherwise provided in Subsection
(h) of Section 501 of the United States Internal Revenue Code of 1954,
as amended, and which does not participate in, or intervene in, including
the publishing or distributing of statements, any political campaign
on behalf of any candidate for public office.
(5)
A post or organization of past or present members
of the Armed Forces of the United States, or an auxiliary unit or
society of, or a trust or foundation for, any such post or organization:
(a)
Organized in this state;
(b)
At least 75% of the members of which are past
or present members of the Armed Forces of the United States and substantially
all of the other members of which are individuals who are cadets or
are spouses, widows or widowers of past or present members of the
Armed Forces of the United States or of cadets; and
(c)
No part of the net earnings of which inures
to the benefit of any private shareholder or individual.
(6)
The following Indian nations or tribes residing in
New York State: Cayuga, Oneida, Onondaga, Poospatuck, Saint Regis
Mohawk, Seneca, Shinnecock, Tonawanda and Tuscarora, where it is the
purchaser, user or consumer.
(7)
A not-for-profit corporation operating as a health
maintenance organization subject to the provisions of Article 44 of
the Public Health Law.
(8)
Cooperative and foreign corporations doing business
in this state pursuant to the Rural Electric Cooperative Law.
B.
Nothing in this section shall exempt sales of food or drink in or by a restaurant, tavern or other establishment operated by an organization described in Subsection A(1), (4), (5) or (6) of this section, other than sales exempt under § 166-41B, from the taxes imposed hereunder, unless the purchaser is an organization exempt under this section.
The taxes imposed by this article shall apply
only within the territorial limits of this taxing jurisdiction.
The taxes imposed by this article shall be administered
and collected by the State Tax Commission in the same manner as the
taxes imposed under Article 28 of the Tax Law of the State of New
York are administered and collected by such Commission. All of the
provisions of said Article 28 relating to or applicable to the administration
and collection of the taxes imposed by that Article shall apply to
the taxes imposed by this enactment, including but not limited to
§§ 1101, 1111 and 1131 through 1147, with the same
force and effect as if those provisions had been incorporated in full
into this enactment, except as otherwise provided in § 1250
of the Tax Law.
A.
Net collections distributed to this taxing jurisdiction
by the State Tax Commission pursuant to § 1261 of the Tax
Law of the State of New York shall be paid into the treasury of this
taxing jurisdiction, shall be credited to and deposited in the general
fund thereof and shall be available for any City purpose. Expenditures
from the proceeds of the taxes imposed by this enactment shall not
be considered as part of the cost of government within the meaning
of any limitation on expenditures contained in any general, special
or local law applicable to this taxing jurisdiction.
B.
As used in this section, "net collections" shall mean
the moneys collected from the taxes imposed pursuant to this enactment,
after deducting therefrom expenses of administration and collection
and amounts refunded or to be refunded.
This enactment shall be construed and enforced
in conformity with Articles 28 and 29 of the Tax Law of the State
of New York, pursuant to which the same is enacted.
This enactment shall take effect on the first
day of March 1992, except that certificates of registration may be
filed with the State Tax Commission and certificates of authority
to collect tax may be issued by the State Tax Commission prior to
said date.
